Tattoo You!

Is it copyright infringement if I take a photograph of the tattooed lady at the circus? Or of the guy who was so fashion-minded he permanently engraved the Louis Vuitton logo on his head? How about my attempts to nab a celebrity photo courtside at the Lakers’ game? Is this really copyright infringement?

Before you scoff at these questions as absurd hypotheticals, you should know that a group of tattoo artists are suing the makers of the popular new NBA 2K game series for unauthorized use of their tattoos on famous ballers such as LeBron James, DeAndre Jordan, Kobe Bryant and others. The plaintiff alleges that defendant Take-Two Interactive Software infringed (and continues to infringe) its copyrighted works because the simulation video game shows players as they appear in real life:  i.e., with their copyrighted tattoos on display.

In response, as expected, Defendant Take-Two accuses the artists of being opportunists who are trying to prevent people from being portrayed as they actually appear in real life.

You may recall this issue raising its giant head in the past, most notably when a copy of Mike Tyson’s facial tattoo appeared after one ugly drunken night on another actor in The Hangover Part II, but that case and  similar cases settled confidentially before the courts could address the merits. It will be interesting to see if Take Two decides to take this one all the way, particularly since virtually every b-ball player sports a multitude of visible tattoos – which would mean a never-ending stream of licensing fees for the tattoo artists if they prevail.

Who knew that inking “I love you, mom!”  on someone’s head could make you a millionaire?

A copy of the Complaint can be found here.

I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.

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